End the defamation farce

It is astounding that a law with a clause so vague and so clearly at odds with respect for fundamental human rights was approved by the last parliament.

WHEN MYANMAR liberalised its telecommunications industry in 2013 – breaking the monopoly of state-run Myanma Posts and Telecommunications, and making SIM cards affordable for most of the population – the move was regarded as another positive step in its transition to democracy.

And for the most part this has been the case. Despite some setbacks – most notably the increase in hate speech this liberalisation has inadvertently enabled – Myanmar people today have better access to information than in the past, leading to a better-informed public.

There have been many other notable improvements as a result, not least better checks and balances on public figures and a platform for citizens to document injustices. People now have a real voice.

The Telecommunications Law was enacted in 2013 to regulate an industry on the cusp of dramatic change. Over the past three years, that change has come at breakneck speed. However, one clause in the law – Section 66(d) – is being used to arrest and detain people who make jokes or political comments on social media.

The imprisonment of people for their political beliefs and actions has long blighted this country. The former government made some progress and this has been continued since the National League for Democracy took office in late March.

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Many political prisoners have been released – although about 100 remain in jail or are awaiting trial – and some of the oppressive laws used to arrest activists during the dark days of the junta have been amended or scrapped.

Section 66(d) of the Telecommunications Law prohibits anyone from using the internet to “extort, threaten, obstruct, defame, disturb, inappropriately influence or intimidate” any other person. The maximum sentence for anyone found guilty under the law is three years’ imprisonment.

The vaguely worded clause has been used to detain a number of activists and social media users in recent years. Many have done little more than make a joke on social media. The people of Myanmar have lived through some very dark years, and humour was often a necessary tool to deal with it. As freedoms have improved, many now use social media platforms to make light-hearted fun of authorities. This happens in democratic countries around the world and should not be a crime.

Freedom of speech is a cornerstone of any democracy. Every country grapples with the limits of free speech, of course; there is, for example, a fine line between sharing an opinion and perpetrating hate speech. What is notable about the Telecommunications Law though is that few, if any, of the social media users who have vociferously attacked other religions in recent years, have been charged under Section 66(d).

Instead, the military has been the major complainant. High profile cases include those of Patrick Khum Jaa Lee, found guilty for allegedly making fun of the Tatmadaw, and Maung Saungkha, who wrote a light-hearted poem about his penis and a former president. Last week, NLD member Ko Myo Yan Naung Thein was put on trial for criticising Commander-in-Chief Senior General Min Aung Hlaing’s handling of security operations in northern Rakhine State.

Since its foundation, the Tatmadaw has billed itself as the only institution that can protect the country’s sovereignty. How can such a powerful institution not take a bit of criticism on the chin?

Unfortunately, the military is not the only institution with intolerance for criticism: Members of the democratically elected government have followed the military’s lead.

Last week, Yangon Region Chief Minister U Phyo Min Thein announced that he would file a complaint to police against the CEO and chief editor of Eleven Media under 66(d) for publishing an opinion piece that suggested he had accepted an expensive watch from a businessman in exchange for approval of a particular project.

If the military and government are willing to use the law to sue for defamation, where does it stop? If a businessperson decides that a rival has defamed them, for example, are they able to simply make a complaint and have that person arrested, too?

The law is so broad that it could clearly be misused in business or personal disputes (as many sections of the Penal Code are already). As it is, the military’s application has already had a chilling effect on debate and discussion online.

Significantly, Section 66(d) carries no exemptions: no circumstances under which a defamatory statement is acceptable. This contrasts with criminal defamation in the Penal Code, which provides a number of exemptions, including when an allegation is true and in the public interest.

It is astounding that a law with a clause so vague and so clearly at odds with respect for fundamental human rights was approved by the former parliament.

Thankfully, there is some light at the end of the tunnel. In light of criticism of the law by activists, the parliament’s Commission for the Assessment of Legal Affairs and Special Issues announced last week that the law would be reviewed.

Myanmar already has a criminal defamation charge, the merits of which are a debate for another day. In a democratic society that values reasonable freedom of speech, there is no place for a clause like Section 66(d).

The commission, government and parliament must work together to remove defamation from the Telecommunications Law, and end the disgraceful imprisonment of citizens for expressing their political beliefs.

This editorial originally appeared in the November 17 edition of Frontier. 

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